Wednesday, 16 June 2010

Jeffrey Sperry, a prisoner in Kansas, has failed in an attempt to be able to get porn in jail. Sperry sought to rely on his constitutional rights, including the right to free speech. Not surprisingly, the prison administration opposed the court case.

In the case, called Sperry v Werholtz, the court had no difficulty in hosing out the claim. The Kansas government's position was simple: having access to porn in jail is a security risk:

Sexually explicit materials are a general impediment to the preservation of
security at [Kansas prison] facilities. They can reasonably be expected to lead to the open performance of lewd acts, which disrupts overall security and order. The possession of sexually explicit materials can openly identify an inmate as homosexual and create an immediate security concern, as such inmates are often targeted for exploitation or violent attack. Sexually explicit materials disrupt and interfere with the treatment and management of sex offenders. The blanket ban prevents sex offenders from having access to such materials directly or by illicit dealing and trading of sexually explicit materials with non-sex offenders. The materials may also be used to sexually harass staff members. There was a potential for staff to file sexual harassment complaints due to exposure to the materials in the workplace environment. Prior to the amendments to [ban the porn, Kansas prisons] had received complaints from prison staff about being required to view these materials while performing their duties. Inmates had also made comments referencing comparisonsbetween prison staff and individuals in the publications or other materials.

Tuesday, 15 June 2010

An El Salvador man has been denied refugee status by a US court as the man could not be believed. The man, Juan Mercedes Cruz, relied on a fear of persecution as a refugee due to his sexual orientation as the basis of his refugee application, but fatally wounded his own case when he told the court that he had been attacked due to his sexual orientation and did not know the identity of his attackers. The only problem with that evidence was that Cruz had said in his asylum application that he had been attacked by members of the MS-13 gang. When the immigration judge pointed out what Cruz had said in his application, Cruz changed his story again to say that he did recall the identities of the attackers, namely members of the MS-13 gang and that he feared that they would attack him if he returned to El Salvador due to his sexual orientation.

In the case, called Cruz v US Attorney-General, Mr Cruz's credibility slid further when he stated that "he only feared gangs because he believed that they would steal from him and attempt to recruit him if he returned to El Salvador", not because he feared that they would beat him up to due to sexual orientation.

The immigration judge and two appeal courts rejected Mr Cruz's claim due to a lack of credibility.

Monday, 14 June 2010

Groundbreaking research has revealed the shocking extent of homophobic violence in Queensland. Publishing the research in a book: “Speaking Out: Stopping Homophobic and Transphobic Abuse in Queensland”, the researchers, Drs Alan Berman and Shirleene Robinson, have uncovered that over a lifetime:

73% of respondents had been subjected to homophobic verbal abuse

41% had experienced threats of physical violence

26% had experienced written abuse, such as by email

23% had experienced physical violence

15% had experienced wilful damage to their car

14% had experienced sexual assault without a weapon

45% of male to female transgendered respondents had been sexually assaulted

Gay respondents were more likely to be the victim of violent physical attacks. Lesbian respondents were more likely to be the victims of sexual assaults.

In the last 2 years before the survey was carried out:

43% of respondents had been subjected to verbal abuse

25% had been spat at or subjected to harassment

18% had been subject to threats of physical violence

9% had been assaulted

The book reveals harrowing and frightening stories, as well as stories of courage. One respondent stated:

"Last June myself and my partner were physically attacked on the streets [ of FortitudeValley] by one main offender while his six or seven friends cheered him on. I ended up in hospital with a dislocated shoulder."

Another respondent stated:

"I was called a 'dyke' and was pushed to the ground, kicked in the side by one person and punched in the face by the other. I managed to overpower them and get away as they were intoxicated."
A transgendered respondent from north Queensland described being:
“spat on twice by a bikie with a mouth full of rum and coke. The first time I confronted him with the security. Second time I called the police who had to pick me up from the rear of the pub for my own and their safety.”

Consistent with international research, the study showed that men were much more likely than women to perpetrate homophobic and transphobic violence.

The research was primarily undertaken by polling almost 1100 respondents, as well as running focus groups from the Gold Coast up to Cairns.

The research, funded by interest from solicitors' trust accounts, made 36 recommendations for change, including:

abolishing the gay panic defence- where a defendant alleges that he assaulted or killed the victim as he thought that the victim was gay and was making sexual advances to him

enacting substantive hate crime legislation in the Criminal Code

ensure that school anti-bullying policies include reference to same sex attracted and transgendered youth

a full time LGBTIQ statewide police liaison officer

installing more CCTV cameras in known violence hotspots, such as FortitudeValley

In her foreword, Justice McMurdo stated:

“The Robinson- Berman survey is the most comprehensive research into homophobic and transphobic abuse, harassment and violence yet undertaken in any Australian jurisdiction”, and:

“This book should convince all Australians that abuse, harassment and violence motivated by homophobia or transphobia remain a distasteful and unacceptable aspect of our society. We must do better.”

The book is published by Australian Academic Press, RRP $34.95.

Disclosure: I assisted the authors with legal aspects that arose from the research.

In Belykh v Holder, Yevgenih Belykh alleged that he had been persecuted in Russia due to his being gay. He relied on the Convention Against Torture. His claim was fatally flawed:

Belykh's testimony as to the date of his first medical examination for military service was so inconsistent that it undermined the claim that Belykh ever underwent any examinations. When and whether Belykh underwent examinations is crucial to the claim that the first examination created a permanent record of Belykh's homosexuality, causing future discrimination.

In a case of "whoops", Belykh's testified that he was subjected to a month-long, involuntary psychiatric hospitalization but left that out of his asylum application. When asked to explain, he answered, "I forgot about it."

Sunday, 13 June 2010

Leonel Euro Ayala, from Venezuela, overstayed his visitor's visa in the US and sought that he be able to stay as a refugee. Amazingly, an immigration judge (who had found Ayala to be credible) and then on appeal the Board of Immigration Appeals found that he was not a refugee. Ayala then appealed again. This time an appeals court held that there had been errors by the Board, and sent the matter back to the Board for rehearing.

Ayala's is one of those harrowing cases that demonstrates why the Refugee Convention exists.

Ayala claimed that he identified as gay from an early age.

In 1995, he learnt that he was HIV positive.

In 2000, aged 30, after having been to a party he was outed to his family, who then rejected him (one can only guess that they did not know that he was HIV positive)

In 2003 co-workers saw him at a gay pride march, and he was outed at work. He was harassed by his co-workers including being told by his supervisor that he would not be promoted again because he was gay and that homosexuals were "mentally deviated people".

In 2004 he resigned from work.

His neighbour, who had influence with police, hated his politics (Ayala was anti- Hugo Chavez) and his sexuality and beat him up, saying: "he did not want a queer living within the compounds of his living quarters".

In September 2004 he had travelled to the US for an 8 day holiday, but had not claimed asylum as "the situation was not as grave and my life was not in danger."

On International AIDS Day, 5 December 2004, after having participated in the march and waiting outside a nightclub for his friends, he was mugged by police, who beat him up and stole his wallet. Ayala demanded his wallet and money back and then:

The officers "told [him] to shut up because [he] was queer and they could apply the vagrancy laws." Ayala "felt scared, very scared" and thought the officers "were going to kill" him. The officers put a hood over Ayala's head and drove him around in their car. The officers eventually removed the hood and forced Ayala to perform oral sex on one of the officers. After they forced Ayala to perform oral sex, the officers drove to "a dark place" that resembled a "marketplace of some sort" and left Ayala there. They told Ayala that "if [he] presented any kind of denouncement or report they had [his] address," and "[t]hey could incarcerate [him] or plant drugs in [his] house and that was all as a result of being queer." Ayala never reported the incident because he feared that the officers would assault him again or fulfill their threats.

On January 23, 2005, members of the Bolivarian Circles physically assaulted Ayala after he participated in a march to protest the Chavez government. Ayala testified that, during the march, he wore "a visor that had the slogan of the opposition" and "carried the slogan of the opposition." When the march ended, Ayala took the train back to his neighborhood. Members of the Bolivarian Circles approached Ayala when they saw his visor, physically assaulted him, and called him "squallad" [a derogatory term about those opposed to Chavez] and "queer." They took his mobile phone, injured the left side of his face, and caused him to bleed from his elbow. Ayala reported the incident to police officers in a nearby patrol car, but they refused to help him. The officers told Ayala "that's what happened to all the squallad queers" and "[s]omething worse than that should've happened for being a member of the opposition.

Ayala then began receiving threatening phone calls. The callers identified themselves as members of the Bolivarian Circles, said they knew where Ayala lived, and told Ayala to "look out because [he] could end up with flies in [his] mouth one morning." Ayala never reported the phone calls to the authorities because the police had mistreated him and he did not believe they would help him. Ayala decided to move to the United States soon after he began receiving the threatening calls.

Ayala now lives in Miami, where he works for a communications company. He receives free health care from a government program at a hospital in Miami. Ayala testified that, although he was able to obtain HIV medications in Venezuela until 2001, Venezuela experienced a shortage of HIV medications after 2001. Ayala denied coming to the United States to obtain better health care, but he acknowledged that he would not have access to the same quality of health care in Venezuela.

Saturday, 12 June 2010

A Pakistani man claiming to be gay has been rejected by the High Court as a refugee.

In the case, called Minister for Immigration v SZMDS, the man had been refused refugee status by the Refugee Review Tribunal. He appealed to the Federal Magistrates Court and lost. He then appealed to the Federal Court, which upheld his appeal. The Minister for Immigration appealed to the High Court.

It was common grounds that homosexual men were prosecuted in Pakistan. The issue was whether this man had discharged his evidentiary burden of proof to show that he was gay, and was rightly fearful of being prosecuted in Pakistan.

The Facts

1991 - he married. He and his wife then had four children

1995 -he moved to the UAE for work

1998 - he returned to Pakistan

2004 - he moved back to the UAE

October 2005 to July 2007 - he developed an attraction to other men

July 2006 - he commenced a gay relationship in the UAE

October 2006- he travelled to the UK

December 2006 - he returned to the UAE

May 2007- he returned to Pakistan

June 2007 - he left Pakistan

July 2007- he arrives in Australia

August 2007- he applies for a protection visa

Why he failed

When the matter had been before the Federal Court, that court had upheld the man's appeal because it said that it could not comprehend the decision of the Refugee Review Tribunal. A majority of the High Court disagreed with the Federal Court's approach, stating that there was a logical conclusion to the Tribunal's reasoning, and in essence it was this:

his evidence was uncorroborated. In other words, he did not have any witnesses to back up his story.

the Tribunal didn't believe him.

the man's story was that he had engaged in gay sex in the UAE where gay sex was criminalised, both under the criminal law and Sharia law.

his fear of being persecuted in the UAE was not realistic.

if he were so afraid of being persecuted, he should have applied for a protection visa when he was in the UK. He didn't.

if he were so afraid of being persecuted in Pakistan, he wouldn't have returned there for 3 weeks in 2007.

Wednesday, 2 June 2010

2016 winner of a Queensland Law Society Equity and Diversity Award: The Australian Gay and Lesbian Law Blog: " (a)strong and pioneering commitment to the rights of and interests of LGBTI people in Australia" Queensland Law Society May, 2016

I am one of Australia's leading surrogacy and divorce lawyers. I was admitted in 1987, and have been an accredited family law specialist since 1996.
I am a partner of Harrington Family Lawyers, Brisbane.
I am an international representative on the American Bar Association's Artificial Reproductive Technology Committee. I am the first international Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. I am one of 33 Australian practising lawyers who are Fellows of the International Academy of Family Lawyers, one of the most prestigious family law groups in the world. I am a founding member of the Australian Chapter of the Association of Family and Conciliation Courts.
I have written and spoken extensively about family law, domestic violence and surrogacy.
I have handled pretty well every type of family law case there is known in over 30 years, and have advised surrogacy/fertility clients from throughout Australia and at last count 24 countries overseas. I have obtained surrogacy orders in Qld, NSW, Vic and SA- the only lawyer to have done so.